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Appendix 6: The International Criminal Court

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The International Criminal Court Act 2002 came into force on 28 June 2002. Section 189 of that Act provides that the department must publish each year, as an appendix to its annual report, a report on the operation of the Act, the operations of the International Criminal Court (ICC) and the impact of the operations of the ICC on Australia’s legal system.

Operation of the International Criminal Court Act

The International Criminal Court Act establishes mechanisms to facilitate Australia’s compliance with its obligations under the Rome Statute of the International Criminal Court, including those relating to the provision of investigative assistance and the arrest and surrender of suspects. The crimes over which the ICC can currently exercise jurisdiction—genocide, war crimes and crimes against humanity—are criminalised under Australia’s domestic law and, in each instance, apply whether or not the alleged offence occurs in Australia and regardless of whether the alleged offender is an Australian national.

Under the Rome Statute a case will be inadmissible before the ICC if the relevant conduct is being investigated or prosecuted by a State with jurisdiction, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution. Australian authorities can therefore investigate and prosecute crimes within the ICC’s jurisdiction, allowing Australia to retain primary jurisdiction over such crimes that are alleged to have been committed in Australian territory or by Australian citizens. The Rome Statute does not affect the right of Australia to exercise primary jurisdiction over these crimes.

Operation of the International Criminal Court

In June 2015, 122 countries were States Parties to the Rome Statute. The ICC’s jurisdiction is currently limited to the crimes of genocide, crimes against humanity and war crimes, and is confined to crimes committed after the Rome Statute entered into force in 2002.

Amendments to the Rome Statute to activate the ICC’s jurisdiction over the crime of aggression were agreed by States Parties in 2010. The crime of aggression is defined as the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. The ICC’s jursidiction over the crime of aggression will commence following ratification by at least 30 States parties and a further decision of the Assembly of States Parties to be taken after 1 January 2017.

Impact on Australia’s legal system

During the reporting year, the operations of the ICC had no discernible impact on Australia’s legal system. The future impact of ICC operations is expected to depend on the number of active prosecutions and investigations undertaken, as well as the number and nature of requests for assistance received by Australia.

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